Now, it appears McDade will be sentenced for a third time, but whether he gets life behind bars could be decided by a jury.

The Michigan Court of Appeals on Tuesday said McDade is entitled to resentencing based on 2-1 ruling the court issued in a separate case in August. In that case, the appeals court ruled juveniles facing life in prison without possibility of parole for murder have a right to have a jury – and not a judge – decide if a life term is appropriate for their crime.

The Aug. 20 opinion in People v. Tia Marie-Mitchell Skinner gives juveniles convicted of murder the option to have a jury decide their fate in cases where prosecutors seek a life-without-parole sentence. It adds another wrinkle in what has been an ongoing debate surrounding juvenile lifers in Michigan and the nation.

There are more than 300 people currently serving life without parole in Michigan prisons for crimes they committed when they were 17 or younger.

The Skinner ruling, at the very least, will have an impact on McDade’s case, as well as one other juvenile lifer case in Kalamazoo County. It’s not immediately clear how many cases statewide could be impacted but the ruling only applies to future cases or ones like McDade’s and Skinner’s that are currently being appealed.

“This is a huge change,” Kalamazoo County Prosecutor Jeff Getting said of the Court of Appeals rulings in the Skinner and McDade cases.

“This is a completely different process than exists in the state of Michigan for any other crime,” said Getting, whose office tried McDade for murder in 2011.

As part of the basis for the Skinner decision, the Court of Appeals pointed to two U.S. Supreme Court cases it said established that “any finding of fact that increases a criminal defendant’s maximum sentence must be proved to a jury beyond a reasonable doubt.”

The state appeals court said one of the Supreme Court rulings has since been applied to invalidate sentencing schemes in Washington and California “both of which share similarities with the sentencing scheme at issue” in the Skinner case.

Getting said his office plans to appeal the appellate court ruling in McDade’s case to the Michigan Supreme Court. Still, he said he expects the Skinner decision will also result in a resentencing order for Victor Garay, whose case is currently pending before the Court of Appeals.

Garay was 15 when he shot and killed 13-year-old Michael Day in May 2014 in Kalamazoo’s Edison neighborhood. Garay, of Kalamazoo, was sentenced by Kalamazoo County Circuit Judge Alexander C. Lipsey to life in prison without the chance of parole.

In McDade’s case, a Kalamazoo jury convicted him in October 2011 of first-degree premeditated murder, attempted murder, felony use of a firearm and carrying a concealed weapon in the 2010 shooting of Eric Lamont Jenkins in the Edison neighborhood.

McDade was sentenced by Lipsey to life in prison without the chance of parole, but his sentence was vacated by the Court of Appeals in 2013 on the heels of a 2012 ruling by the U.S. Supreme Court in Miller v. Alabama that invalidated “juvenile lifer” sentencing schemes as a form of cruel and unusual punishment that fail to consider the potential for cognitive and character development in young people.

Lipsey had two options when he resentenced McDade in August 2014. He could have left the sentence unchanged, but only after considering several factors laid out in the Miller v. Alabama ruling, including McDade’s age at the time of the killing, his criminal history and the extent of his involvement in the murder.

Evidence at McDade’s trial showed he shot Jenkins and another man in the 1100 block of Washington Avenue after he became frustrated with a third man who disappeared with McDade’s marijuana and money.

Under legislation signed by Gov. Rick Snyder in March 2014, Lipsey also could have given McDade a term of years in prison, with the lower end of the sentence range set at between 25 and 40 years and the high end at not less than 60 years.

The judge left the sentence unchanged, again ordering McDade to spend life in prison.

“The court believes that it does not fall within the purview of those cases that (Miller v. Alabama) suggests might be modified to provide for a term-of-years sentence,” Lipsey said on Aug. 22, 2014, before issuing his decision.

McDade’s attorney, Kiana Garrity, appealed in September 2014 and the case was pending when the Court of Appeals issued its ruling in August in the Skinner case, holding that juvenile lifers have a right to have the type of factors Lipsey considered at McDade’s sentencing weighed by a jury.

“We find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury,” the appeals court said.

Prosecutors have filed to appeal the Skinner ruling to the Michigan Supreme Court, which has not yet decided whether to hear arguments in the case.

Both Getting and Garrity said that if the Skinner ruling stands, a defendant who was not sentenced by a jury to mandatory life without parole would then be subject to a term-of-years sentence determined by a judge.

Skinner’s father was stabbed to death. Her mother survived 26 stab wounds.

Skinner, who was 17 at the time, was later convicted of first-degree premediated murder, attempted murder and conspiracy to commit murder and was sentenced in September 2011 to mandatory life without parole.

Like McDade, the Supreme Court’s decision in Miller v. Alabama was handed down while Skinner’s appeal of her conviction was pending. Later, the Michigan Court of Appeals affirmed Skinner’s convictions but remanded her case for resentencing based on Miller.

In July 2013, Skinner was resentenced to life without parole. She appealed her sentence and her appeal was pending in 2014 when Snyder signed into law the framework for sentencing juvenile lifers in Michigan.

Skinner’s appeal was held in abeyance while the Michigan Supreme Court considered the retroactivity of Miller v. Alabama. The state supreme court later ruled that the Miller decision was not retroactive and sent Skinner’s case back to St. Clair County Circuit Court for a second resentencing.

The question of whether the Miller v. Alabama ruling is retroactive has yet to be answered. The issue was argued before the U.S. Supreme Court in October but it has yet to rule.

After the state Supreme Court’s ruling on the retroactivity of the decision in Miller v. Alabama, Skinner and her attorney moved to have a jury impaneled to consider the factors laid out in Miller, according to court documents. A St. Clair County judge denied that motion, however and Skinner was sentenced again in September 2014 to life without parole.

Skinner and her attorney again appealed her sentence to the state Court of Appeals and argued that a jury should conduct the fact finding required under Michigan’s sentencing scheme for juvenile lifers to determine whether Skinner should to be sentenced to life without parole.

She and her attorney argued that the sentencing scheme violated her Sixth Amendment right because it exposed her to a penalty that was harsher than the presumptive term-of-years sentence “authorized by the jury verdict.”

The appeals court agreed and held that, based on the sentencing scheme signed into law by Snyder, Skinner was subject to a term-of-years sentence for her murder conviction.

However, once prosecutors in St. Clair County filed a motion to impose a life-without-parole sentence, as required by the law Snyder signed, Skinner “was exposed to a potentially harsher penalty contingent on findings” made by a judge.

“The (U.S.) Supreme Court found these schemes unconstitutional, solely upon judicial fact-finding,” the state appeals court said. “The Supreme Court found these schemes unconstitutional … Similarly, the sentencing scheme in this case cannot stand when examined under the lens of the Supreme Court’s Sixth Amendment jurisprudence.”

Garrity, for her part, said she’s confident that the Skinner ruling will stand and McDade will get his day in court for resentencing. She said she believes the state Supreme Court will decline to hear arguments on Skinner and will do the same with the appeal Getting’s office plans to file of the McDade ruling.

With the appeal of the Skinner ruling pending before the Michigan Supreme Court and Kalamazoo prosecutors plans to appeal the McDade ruling, Getting said the question of if and when McDade will be resentenced is “up in the air.”

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